Opinion
19-P-642
08-05-2020
ADOPTION OF USHER (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found the mother unfit to parent her two children, Usher (born in October 2006) and Adam (born in September 2008), terminated her parental rights, and approved the adoption plan of the Department of Children and Families (department). The mother and Usher now appeal. We affirm.
The judge also found both of the children's fathers unfit and terminated their parental rights. Neither father appealed.
Discussion. Parental rights are fundamental and cannot be terminated unless a judge determines by clear and convincing evidence that a parent is currently unfit and termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 515 (2005); Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). The trial judge's decision will remain undisturbed unless the findings of fact are clearly erroneous or there is a clear error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011).
"A finding is clearly erroneous [and thus not supported by evidence] when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.'" Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 (2003), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).
"The standard for parental unfitness and the standard for termination are not separate and distinct, but 'reflect different degrees of emphasis on the same factors.'" Adoption of Nancy, 443 Mass. at 515, quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). The finding of unfitness takes "into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993).
The judge "must also find that the current parental unfitness is not a temporary condition." Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). In making this determination, the judge may properly take into account "prognostic evidence derived from an ongoing pattern of parental neglect or misconduct." Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
"After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. at 515. A termination decision involves consideration of the child's best interests, and the "ability, capacity, fitness and readiness of the child's parents[;] . . . [the judge] shall also consider the plan proposed by the department." Id. at 515-516, quoting G. L. c. 210, § 3 (c).
1. The mother. The mother argues that the judge erred in terminating her parental rights because (1) various findings of fact were clearly erroneous, (2) the judge relied on stale evidence and inadmissible G. L. c. 119, § 51A, reports (51A reports), (3) the judge ignored evidence favorable to the mother, and (4) the department failed to prove her unfitness by clear and convincing evidence.
a. Unfitness. The mother contends that the findings and conclusions of law stating that she was physically violent toward the children and "collaterals," maintained inconsistent visitation, and was generally unaware of the children's medical and educational needs are clearly erroneous. As these findings were well supported by the evidence in the record, we disagree.
The record supports the judge's conclusion that the mother was physically violent toward the children and collaterals. Of note is that a G. L. c. 119, § 51B, investigation supported an allegation of physical abuse by the mother in 2015, and Usher stated that he would like to live in a home that is free from physical discipline with a caretaker who can keep him safe.
The mother's criminal record depicts a history of assaultive behavior toward collaterals. There was evidence that the mother pleaded guilty to assault against a person over the age of sixty in 2010, and that elder abuse reports were filed in 2011 naming the mother as the abuser against her two aunts who lived with the mother's grandmother. One of the mother's aunts also obtained a G. L. c. 209A order (209A order) against the mother in 2012.
The evidence presented at trial also revealed that the mother has a history of being physically abused by her then-boyfriend, and of being physically abusive toward her grandmother. Over the course of the mother's two- to three-year relationship with the boyfriend -- during which the boyfriend lived with her and the children -- the boyfriend would "beat [her]," "knock [her] unconscious, wake [her] up, [and] knock [her] out again." The mother denies that the domestic violence perpetrated by the boyfriend had any effect on the children.
The mother was also physically violent toward her grandmother, sometimes in the presence of the children. The mother and her grandmother had a tumultuous relationship; the grandmother has called the police on the mother numerous times for assaultive behavior and at least one elder abuse report was filed naming the mother as the abuser as a result of the mother's physical and verbal abuse of her grandmother. The mother was arrested for assault and battery on her grandmother in 2015, after the mother slapped her grandmother in the face. The mother's grandmother has also taken out multiple 209A orders against the mother.
The evidence of the physical violence perpetrated by the mother against her grandmother, the children, and collaterals, and the evidence that the mother was a victim of domestic violence, were properly considered by the judge in determining the mother's unfitness. See Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005) ("Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children"). See also Custody of Vaughn, 422 Mass. 590, 595 (1996) ("a child who has been either the victim or the spectator of [domestic violence] suffers a distinctly grievous kind of harm").
The record also supports the finding that the mother's visitation with the children was inconsistent. The mother canceled or rescheduled multiple visits with the children during 2017-2018. There was also evidence that the department was forced to cancel or reschedule visits in 2017 due to the mother not confirming visits ahead of time.
The mother is correct that some of the judge's findings and conclusions of law are internally inconsistent in regard to visitation between the mother and the children. However, this does not render the conclusions clearly erroneous, as the general premise that the mother was inconsistent with visitation does have evidentiary support, as explained above.
The mother's volatile temperament and inappropriate conduct were also properly taken into account by the judge as evidence of the mother's unfitness. The mother needed to be redirected by the social worker numerous times during her visits with the children due to her inappropriate conduct, and the mother consistently made inappropriate comments to the children and in front of the children during visits, including mocking and teasing the children.
For example, the mother "repeatedly discussed things with the children that she [did] not have authority over," such as whether the children can cross the street by themselves and whether they will return to living with her. In December 2017, the mother reprimanded Usher for calling his foster mother "Mommy." During a visit in December 2015, the mother suggested that the family "dine and ditch" while waiting for a check at a restaurant. The mother has also repeatedly called the children "cheaters" in a belittling manner; in July 2016 the mother insinuated that Usher was a liar, causing him to "shut down" and attempt to leave the room. In January 2017, the mother mocked Usher for asking who his father was.
Although it was not a specific task on her service plan, the uncleanliness of the mother's house was also properly considered by the judge. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). Since 2010, numerous 51A reports have been filed having to do with the cleanliness of the mother's home, among other concerns. While there was evidence that in 2011 the home was infested with mice and cockroaches, the main issue continued to be that the mother's home was hazardous due to the unsafe furniture in the children's room.
The mother argues that because the cleanliness of her home was never addressed in a service plan, she was never put on notice that it was a barrier to reunification, and thus the judge violated her due process rights when the judge relied on findings regarding the cleanliness of the home to find her unfit. See Adoption of Zev, 73 Mass. App. Ct. 905, 905-906 (2009). However, even though it was not a specific task in the service plan, the social worker had discussed the cleanliness of the home with the mother before, and explained to the mother what it meant to clean and organize her home. The mother was also provided with information from a housing consultant to help her move, which she repeatedly stated was her intention. Thus, the mother did have notice that the department was concerned with the cleanliness of her home and the department made reasonable efforts to assist her in remedying the issue.
In 2011, the department offered the mother a referral to have furniture donated for the children's room, but the mother refused. As of 2018, the mother still had not replaced the unsafe furniture in the children's bedroom, despite numerous claims that she had remedied the issue or planned to do so. When a social worker visited the home in April 2018, not only did the children's room still have furniture that was "not in living condition," the room was also full of trash, old papers and clothes, and storage boxes.
The judge also properly considered the mother's lack of engagement with the children's medical, behavioral, and educational needs as evidence of her unfitness. Both children had diagnosed mental health issues, and Usher had special educational needs, and struggled with numerous behavioral issues as well. Due to his emotional and behavioral issues, Usher needed a structured, consistent environment, without which he was significantly affected; a main trigger point for Usher was inconsistency with the mother's visitation, specifically when she canceled or rescheduled visits.
At trial, the mother admitted that she did not request information regarding the children's educational and medical providers from the department. And, although the social worker gave the mother information to contact the children's therapist and medical providers in September 2017 and early 2018, the mother could not answer specific questions about the children's needs, showing that she had not actively engaged with the children's healthcare providers even after receiving their information. Additionally, even though the mother was made aware that missing visitation negatively affected the children, the mother continued to miss visits.
Therefore, the judge's conclusion that the mother is currently unfit to parent the children has clear and convincing evidentiary support.
"We pause to note that the mother has shown evident affection toward [the children], and none of the judge's findings negate this. Despite the moral overtones of the statutory term 'unfit,' the judge's decision was not a moral judgment or a determination that the mother . . . do[es] not love the [children]." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). "The inquiry instead is whether the parent['s] deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Id., quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Contrary to the mother's assertion, the judge performed an "even handed" assessment of the evidence presented at trial. See Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied, 536 U.S. 1034 (1999). The judge included evidence favorable to the mother throughout the findings of fact and conclusions of law. Nevertheless, the judge did not err in concluding that the evidence favorable to the mother did not outweigh the substantial evidence of her unfitness. See Custody of Eleanor, 414 Mass. 795, 799 (1993) ("judge's assessment of the weight of the evidence and the credibility of witnesses is entitled to deference").
Throughout the judge's findings of fact and conclusions of law, the judge noted the mother's appropriate behavior when visiting the children, the mother's inquiries about the children's education and health, and the mother's completion of tasks on her service plans.
Nor was the evidence of the mother's unfitness stale. Past parental conduct may be relevant to the issue of current parental fitness "where the evidence supported the continuing vitality of such conduct." Adoption of Larry, 434 Mass. 456, 469 (2001). Here, there was no indication that any of the mother's circumstances had improved over the course of this case. At the time of trial, the mother had still failed to adequately address the cleanliness of her home; was unable to maintain appropriate parental behavior and discussions around the children; lacked a general understanding of the children's medical, behavioral, and educational needs; and did not acknowledge any negative effects to the children resulting from physical violence in the home -- all of which are issues that had been identified over the course of this case. See Adoption of Don, 435 Mass. 158, 166 (2001); Adoption of George, 27 Mass. App. Ct. 265, 268 (1989), overruled on another ground by Adoption of Luc, 484 Mass. 139 (2020) ("Prior history . . . has prognostic value" in determining unfitness).
The mother also argues that the judge relied on inadmissible allegations in 51A reports to conclude that the mother was physically and verbally abusive toward the children. However, the mother's physical and verbal abuse toward the children came in through other admissible evidence, as explained above, and the evidence that Usher threatened the bus monitor with a belt came in through the testimony of the social worker. There was no error.
b. Termination. There was no abuse of discretion in the judge's determination that it was in the best interests of each of the children to terminate the mother's parental rights. See Adoption of Ilona, 459 Mass. at 59. The judge's findings demonstrate that the mother's unfitness would continue to have a harmful effect on the children absent termination.
Numerous findings demonstrate the mother's inappropriate comments and conduct around the children during visitation, the mother's inability to recognize the negative repercussions on the children from her own actions and the actions of those she allows around her children, and the mother's inability to provide a safe and sanitary environment for the children to live in. The findings also demonstrate the mother's unwillingness to engage with the children's medical and educational providers, even though the children have special educational and medical needs.
In contrast, as the judge's factual findings demonstrate, the children's needs are being met by their preadoptive parents. The preadoptive parents have provided the children with a safe, stable home environment that has facilitated the children's growth since they were first placed there in 2015. The preadoptive parents communicated with the children appropriately. Both children have made significant gains in school and progressed in their abilities to regulate their behaviors and emotions. Usher now has an emotional support dog that helps him when he is overwhelmed or frustrated. Both children are very attached to their preadoptive parents.
Thus, the evidence firmly supports the judge's conclusion that it was in the best interests of the children for the mother's parental rights to be terminated. See Adoption of Nancy, 443 Mass. at 514.
c. Posttermination and postadoption visitation. The mother also argues that the judge abused her discretion in failing to order posttermination and postadoption visitation because there was substantial evidence of a loving bond between the mother and the children.
A judge has equitable authority "to order visitation between a child and a parent whose parental rights have been terminated, where such visitation is in the child's best interest[s]." Adoption of Ilona, 459 Mass. at 63. In determining whether visitation is in the child's best interests, the "judge should consider, among other factors, whether there is 'a significant, existing bond with the biological parent' whose rights have been terminated." Id., quoting Adoption of Vito, 431 Mass. 550, 563 (2000).
In instances where a preadoptive family has been identified, the judge may also consider "whether the [children] '[have] formed strong, nurturing bonds' with that family." Adoption of Ilona, 459 Mass. at 64, quoting Adoption of Vito, 453 Mass. at 563. Adoptive parents are entitled to the presumption that they will act in accordance with the best interests of the children when making decisions about visitation. Adoption of Ilona, supra at 64-65.
We discern no abuse of discretion in the judge's decision that visitation should be left to the informed decision making of the preadoptive parents. As previously mentioned, the determination that the children's needs were being met by their preadoptive parents was well grounded in the evidence. The preadoptive parents encouraged and allowed weekly visitation between the children and the mother and two maternal aunts. Thus, even though there was evidence that the mother shared a bond with her children, "[t]here is no reason to question the presumption that [the children's] preadoptive parents will act in [their] best interest[s] in evaluating -- now and in the future -- whether continued contact with [their] mother is in [the children's] best interest[s][;] . . . nor is there any compelling reason requiring that a visitation order be entered in order to protect the best interests of the [children]." Adoption of Ilona, 459 Mass. at 66.
2. Usher. a. Ineffective assistance of counsel. For the first time on appeal, Usher argues that he was denied effective assistance of counsel because his trial counsel operated in direct opposition to his wishes to return home to the mother and to testify at trial. We disagree.
"Absent exceptional circumstances, [appellate courts] do not review claims of ineffective assistance of counsel for the first time on appeal." Care & Protection of Stephen, 401 Mass. 144, 150 (1987). Usher argues that we should nonetheless consider his claim for ineffective assistance of counsel because an exceptional circumstance exists in this case. Usher argues that "the factual basis of [his] claim appears indisputably on the trial record" through trial counsel's actions, arguments, and lack of affirmative positions taken at trial. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
To succeed on a claim of ineffective assistance of counsel in a proceeding to terminate parental rights, a party must first demonstrate that "'behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer,' and if so, 'whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence.'" Care & Protection of Georgette, 439 Mass. 28, 33 (2003), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Even if we were to consider Usher's claim for ineffective assistance of counsel and agree with Usher that trial counsel's behavior at trial fell measurably below the standard expected of an ordinary fallible lawyer, the claim would still fail because Usher "has failed to demonstrate any prejudice based on the overwhelming proof of [the mother's] unfitness." Care & Protection of Georgette, 439 Mass. 28, 34 (2003). As discussed above, the judge was presented with significant evidence demonstrating the mother's unfitness at trial, and thus even the most zealous arguments by any trial counsel against termination of the mother's parental rights and for posttermination and postadoption visitation would likely not have changed the result. See id. at 34-35.
b. Termination. Usher also claims that it was error for the judge to terminate the mother's parental rights because neither Usher's custodial preference nor his wish to testify were given any weight by the judge in making that determination. We disagree.
"A judge should consider the wishes of the children in making custodial determinations, and those wishes 'are entitled to weight in custody determinations.'" Adoption of Nancy, 443 Mass. at 518, quoting Care & Protection of Georgette, 439 Mass. at 36. A child's view "[is] neither decisive, nor outcome determinative" (citation omitted). Adoption of Nancy, 443 Mass. at 518.
While it is true that the judge was required to consider Usher's views, the determination regarding terminating the mother's parental rights also required that the judge consider Usher's statements that he wanted to live in a home that was free from physical discipline and that he was comfortable in his preadoptive home, as well as the clear and convincing evidence of the mother's unfitness. In light of this evidence, and giving proper deference to the judge's assessment of the weight of the evidence, we cannot conclude that the judge abused her discretion in concluding that the evidence weighed in favor of termination. See Custody of Eleanor, 414 Mass. at 799; Care & Protection of Vick, 89 Mass. App. Ct. at 710.
Contrary to Usher's assertion, the judge was not required to make explicit findings about Usher's wishes when determining whether it was in his best interests to terminate the mother's parental rights. See Adoption of Nancy, 443 Mass. at 516.
Decrees affirmed.
By the Court (Maldonado, Blake & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 5, 2020.